Global Principles on National Security and Freedom of Information (“Tshwane Principles”)

The Tshwane Principles provide for whistleblower protection which should be endorsed and applied by all national governments.

The urgent need for a public interest defence (Principle 43) for whistleblowers in both the public and private sectors – those who are criminally charged for disclosing secret or privately owned information – is more important than ever. Principle 43 has been reproduced in full below.

Summary of relevant whistleblower protection principles: :

Principles 40, 41 and 43
Whistleblowers in the public sector should not face retaliation if the public interest in the information disclosed outweighs the public interest in secrecy. But they should have first made a reasonable effort to address the issue through official complaint mechanisms, provided that an effective mechanism exists.

Principles 43 and 46
Criminal action against those who leak information should be considered only if the information poses a “real and identifiable risk of causing significant harm” that overrides the public interest in disclosure.

PUBLIC INTEREST DEFENCE Principle 43

Public Interest Defence for Public Personnel

(a) Whenever public personnel may be subject to criminal or civil proceedings, or administrative sanctions, relating to their having made a disclosure of information not otherwise protected under these Principles, the law should provide a public interest defense if the public interest in disclosure of the information in question outweighs the public interest in non-disclosure.

Note: This Principle applies to all disclosures of information that are not already protected, either because the information does not fall into one of the categories outlined in Principle 37 or the disclosure contains information that falls into one of the categories outlined in Principle 37 but was not made in accordance with the procedures outlined in Principles 38–40.

(b) In deciding whether the public interest in disclosure outweighs the public interest in non-disclosure, prosecutorial and judicial authorities should consider:

(i) whether the extent of the disclosure was reasonably necessary to disclose the information of public interest;

(ii) the extent and risk of harm to the public interest caused by the disclosure;

(iii) whether the person had reasonable grounds to believe that the disclosure would be in the public interest;

(iv) whether the person attempted to make a protected disclosure through internal procedures and/or to an independent oversight body, and/or to the public, in compliance with the procedures outlined in Principles 38-40; and

(v) the existence of exigent circumstances justifying the disclosure.

Note: Any law providing criminal penalties for the unauthorized disclosure of information should be consistent with Principle 46(b).This Principle is not intended to limit any freedom of expression rights already available to public personnel or any of the protections granted under Principles 37–42 or 46.

The Tshwane Principles are based on international (including regional) and national law, standards, good practices, and the writings of experts. They address national security—rather than all grounds for withholding information. All other public grounds for restricting access should meet these standards. The Principles were drafted by 22 organizations and academic centres (listed in the Annex) in consultation with more than 500 experts from more than 70 countries at 14 meetings held around the world, facilitated by the Open Society Justice Initiative. This process culminated in a meeting in Tshwane, South Africa.